UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION

Transcription

1 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION BASHE ABDI YOUSUF;. Civil Action No. :0cv0 AZIZ MOHAMED DERIA, in his. capacity as the personal. representative of the estate. of Mohamed Deria Ali; AZIZ MOHAMED DERIA, in his. capacity as the personal. representative of the estate. of Mustafa Mohamed Deria;. BURALLE SALAH MOHAMOUD;. AZIZ MOHAMED DERIA, in his. capacity as the personal. representative of the estate. of Abdullahi Salah Mahamoud. (the deceased brother of. Buralle Salah Mohamoud);. AZIZ MOHAMED DERIA, in his. capacity as the personal. representative of the estate. of Cawil Salah Mahamoud. (the deceased brother of. Buralle Salah Mohamoud); and. AHMED JAMA GULAID,.. Plaintiffs,.. vs.. Alexandria, Virginia. February, 0 MOHAMED ALI SAMANTAR,. :0 a.m.. Defendant TRANSCRIPT OF HEARING BEFORE THE HONORABLE LEONIE M. BRINKEMA UNITED STATES DISTRICT JUDGE (Pages - ) COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES

2 0 APPEARANCES: FOR THE PLAINTIFFS: FOR THE DEFENDANT: SOMALI INTERPRETER: ALSO PRESENT: OFFICIAL COURT REPORTER: L. KATHLEEN ROBERTS, ESQ. Center for Justice and Accountability 0 Market Street, Suite 0 San Francisco, CA and THOMAS P. McLISH, ESQ. DEBRA A. DRAKE, ESQ. JOSEPH W. WHITEHEAD, ESQ. Akin Gump Strauss Hauer & Feld LLP New Hampshire Avenue, N.W. Washington, D.C. 00 JOSEPH PETER DRENNAN, ESQ. North Lee Street, Third Floor Alexandria, VA ABDURAHMAN KHASSE MOHAMED ALI SAMANTAR ANNELIESE J. THOMSON, RDR, CRR U.S. District Court 0 Courthouse Square Alexandria, VA (0)-

3 0 P R O C E E D I N G S THE CLERK: Civil Action 0-0, Bashe Abdi Yousuf et al. v. Mohamed Ali Samantar. Would counsel please note their appearances for the record. MR. McLISH: Good morning, Your Honor. Tom McLish for the plaintiffs. With me are Debra Drake, Kathy Roberts, and Joseph Whitehead. THE COURT: Good morning. MR. McLISH: Good morning, Your Honor. MS. ROBERTS: Good morning. MR. DRENNAN: Good morning, Your Honor. Joseph Peter Drennan on behalf of the defendant, Mohamed Ali Samantar, who is seated next to me at counsel table. THE COURT: All right. Now, again, Mr. Drennan, you were late this morning. You need to be on time for court proceedings. MR. DRENNAN: I apologize, Your Honor. We had delay in security and also with me getting Mr. Samantar here, we walked -- we parked about a block away, and he walks very slowly, and I apologize to the Court. THE COURT: Well, but you need to leave enough time, understanding that those things can happen. In any case -- MR. DRENNAN: I do understand, Your Honor. THE COURT: All right. Now, what concerns the Court -- and we need to address this issue quickly, because

4 0 I've got approximately 0 civilians downstairs in the jury assembly room who were called to be here today, because this case, as you know, was delayed two days because of the bankruptcy filing. The bankruptcy stay has been lifted to let this matter go forward. We received a call this morning from your office indicating that Mr. Samantar is not planning to contest this case. Is that correct? MR. DRENNAN: That, that is indeed correct, Your Honor. I have just been apprised of that. I've been preparing for trial, and Mr. Samantar has reached the conclusion that, that his circumstances basically make it impossible for him to proceed, and he has elected to, to take a default at this point and not to contest. THE COURT: Now, is that both liability and damages? MR. DRENNAN: Yes. THE COURT: All right, I'm going to need to get on the record from Mr. Samantar himself -- MR. DRENNAN: I understand, Your Honor. THE COURT: All right. Mr. Samantar, come up to the lectern. MR. DRENNAN: Can we have an interpreter, Your Honor? Is the interpreter here? THE INTERPRETER: Yeah. THE COURT: All right, we'll have the interpreter

5 0 come up, please. I need Mr. Samantar right by the -- will the interpreter please state your name and slowly spell it for us. THE INTERPRETER: Your Honor, I am a Somali interpreter. Last name is Khasse, last name, K-h-a-s-s-e, first name Abdurahman, A-b-d-u-r-a-h-m-a-n. THE COURT: All right. And what is your professional background such that we can accept you as an interpreter in this case? THE INTERPRETER: Well, Your Honor, I came from Minnesota, and we take a test. I'm on the roster in Minnesota Supreme Court, and we do different federal, state, and civil cases. THE COURT: So you've appeared as a Somali translator in federal court? THE INTERPRETER: Yes, Your Honor. THE COURT: All right. Then I'll have our clerk administer an affirmation to you at this time, and unless there's an objection from the plaintiffs, we'll accept this gentleman as a proper interpreter. MR. McLISH: No objection, Your Honor. THE COURT: All right, that's fine. We'll administer the affirmation. (ABDURAHMAN KHASSE affirmed to translate Somali into English.) THE COURT: Now, Mr. Samantar, I'm going to place you under an affirmation. That means a promise to tell the truth

6 0 in answering the Court's questions. Do you understand that? MR. SAMANTAR: Yes. THE COURT: All right. Please raise your right hand. MOHAMED ALI SAMANTAR, DEFENDANT, AFFIRMED THE COURT: All right. Now, will you please for the record state your full name. MR. SAMANTAR: Mohamed Ali Samantar. THE COURT: All right. And, Mr. Samantar, do you understand that all of your answers to the Court's questions must be completely truthful and that if you were to lie in answering any question, you would be subject to possible prosecution, criminal prosecution for perjury? Do you understand that? MR. SAMANTAR: Yes. THE COURT: All right. Do you understand that your lawyer has told the Court this morning that you no longer want to contest this lawsuit? MR. SAMANTAR: Right. THE COURT: Now, have you had enough time to talk with Mr. Drennan about this decision not to further contest or debate or rebut the claims in this lawsuit? MR. SAMANTAR: Yes. THE COURT: Is it your decision today that you don't want to contest this lawsuit? MR. SAMANTAR: Yes.

7 0 THE COURT: Now, do you understand if the Court accepts your position, that means I am going to find that you are liable for all the actions that are described in the plaintiffs' complaint? MR. SAMANTAR: Yes. THE COURT: That means among other things you will be found liable for causing the deaths that are at issue in this case, for being responsible for the extrajudicial killings, the attempted extrajudicial killings, the rape, the torture, and the other very serious allegations in this complaint. Do you understand that? MR. DRENNAN: Your Honor, if I might, the rape cause of action was nonsuited by -- dismissed by the, by the plaintiffs earlier. That action is no longer a part of the case. THE COURT: I'm sorry. That's correct, correct? MR. McLISH: That's right. THE COURT: All right. Omitting the rape, the other serious allegations in the complaint, you would be admitting to being liable for them. Do you understand that? MR. SAMANTAR: I understand, but, but I want to say something here to clarify. I want to stop this litigation. The reason is I don't have any economical, you know -- THE COURT: Wait, I'm sorry, I'm not getting -- we need to stop, because I can't get the interpreter's English.

8 0 Yeah. Could you repeat that, please? MR. SAMANTAR: What I say is I want this case -- this court to be stopped. The reason is to continue this proceeding, it needs to have some money, and I don't have any money. Because of that, I request to accept default, but that doesn't mean that, you know, I'm guilty or I commit any crime. THE COURT: Well, you can't have it both ways. This is not a criminal case, so we're not talking guilt, but we are a civil case, so we are talking about liability. MR. SAMANTAR: Yes. THE COURT: If you default, if you choose not to fight this case, then the way the law is structured, the Court will accept all of the well-pleaded allegations in the amended, second amended complaint that have not been nonsuited, and the only issue that will be left -- there still is going to be, have to be a trial on the issue of damages. Whether you can pay the damages if damages are ultimately awarded or not is a completely separate issue, but I want to make sure you understand that just taking a default and walking away doesn't stop the litigation. Do you understand that? MR. SAMANTAR: Yes. THE COURT: And has -- Mr. Drennan, had you basically discussed what I've just been trying to explain to your client with him so he understands that with a default, that doesn't

9 0 stop the litigation in the sense that it doesn't prevent a judgment from issuing? MR. DRENNAN: I have indeed discussed that with, with my client, Your Honor. He understands fully that his electing to take a default will give rise to liability, as Your Honor just indicated, on all the well-pleaded causes of action in respect to the case. He also understands further that this decision will invariably give rise to the Court assessing damages against him, both compensatory and possibly, in the Court's discretion, punitive as well. THE COURT: All right. Mr. Samantar, you heard what Mr. Drennan just explained to the Court, did you? MR. SAMANTAR: Yes. THE COURT: And is that an accurate description of the conversation he had with you about the default? MR. SAMANTAR: Yes. THE COURT: All right. Has anybody -- other than your financial situation, has anybody put any force or pressure on you to make the decision to default? MR. SAMANTAR: No. THE COURT: Has your medical condition in any respect and the medications you may be taking made it difficult for you to understand your conversations with Mr. Drennan? MR. SAMANTAR: No, I understand them well. THE COURT: All right. And, Mr. Drennan, for the

10 0 record, do you use an interpreter when you're communicating with your client, or does he have moderately decent English capability? MR. DRENNAN: Your Honor, Mr. Samantar's present English capability is exceedingly modest, and my communications with him are through his siblings, the older of which are fluent in Somali and English, primarily Yusuf Samantar, who is here in court, and Ayanle Samantar -- THE COURT: All right. MR. DRENNAN: -- his brother. THE COURT: All right. I think on this record, there is no question that the defendant has made the decision to default on the issue of liability and damages with the full advice of counsel, that he's made this decision in a knowing and voluntary fashion, and nothing has been brought to the Court's attention to in any respect have concerns about the legitimacy of the default. Is there anything further the plaintiffs want the Court to establish on this issue? MR. McLISH: I don't think so, Your Honor. THE COURT: All right. I'm accepting then this position that the defendant is defaulting, and that means therefore the Court is going to go ahead and find, because I reread the amended complaint this morning, that the allegations are adequately well-pleaded, they are consistent with the

11 0 statutory requirements, and that liability is established as to all of the claims still at issue in the second amended complaint, and that leaves for us then the determination of damages. Now, we have a jury downstairs, but I've researched this issue this morning, and I'm satisfied that this issue of the damages should be tried to the Bench, and unless the plaintiffs have any objection, I want to excuse the jury at this point. MR. McLISH: Your Honor -- THE COURT: Mr. Samantar, you may now sit next to your counsel. And the interpreter can stay at table so Mr. Samantar can understand the proceedings. Yes, sir. MR. McLISH: Your Honor, we just found out about the defendant's intention this morning, also, so we've had a limited opportunity to research the issue. We believe that Your Honor does have the discretion to order a jury trial on the damages in this situation, so the plaintiffs would ask that you, that you do that, that they be allowed to present their damages evidence to a jury, and then we proceed in that fashion. THE COURT: Well, I'm going to exercise my discretion and deny that request. I think the time that juries spend is

12 0 very precious time. We have almost 0 people downstairs waiting to come in, but a jury trial will greatly extend the length of these proceedings, which in my view is not necessary. For the amount of time to voir dire the jury, to get them in place, the need to at the end of the proceedings give them instructions, the very extensive verdict form, which I agree would be shorter but still it would definitely be adding many, many additional hours to the trial, plus the wear and tear on members of our community, which in my view is unnecessary, the law does not -- and I've looked at the case law carefully on this. I think the opinion that is most instructive is the Mwani -- that's M-w-a-n-i -- et al. v. Bin Laden and al Qaeda, it's a 00 decision out of the District of Columbia by Judge Kollar-Kotelly. It's a very, very articulate description of the issues, and although I don't believe the Fourth Circuit has addressed this issue, I'm satisfied that there's not a Seventh Amendment right, absolute right to a trial by jury on damages in a default case, and the defendant has defaulted not only on liability but on damages. He's not contesting or planning to be here to fight the damage issue. Your clients want their day in court, they're here, and we're ready to start within the next two or three minutes the damage portion of the case. Do you need a few minutes to -- because again, I'm not going to take a significant amount of time. It's not going to be necessary to establish the facts

13 0 in the second amended complaint. They're deemed admitted, and the issue will then be what evidence you have as to what the appropriate damages should be. MR. McLISH: Your Honor, I think we do need a short amount of time to, to figure out exactly how we would like to do that and to work out a way to do it as efficiently as possible. We came here prepared to put on our full case. It sounds very much to me like Your Honor does not think we should do that, so -- THE COURT: No. Again, your clients will have their day in court, but the parameters of that day in court or two days in court is what is a reasonable presentation of the appropriate evidence that is now needed to decide the issues that are before us. What I want to do is this: I'm going to excuse the jury. I had given serious thought to imposing the costs of a second jury on the defendant, but I realize that the issue about whether or not there would still be a trial by jury even in an ex parte situation is an open question. I mean, I'm satisfied the courts that have looked at it have all gone in this direction, and I'm going to go in this direction as well, conducting it as a bench trial, but giving the defendant the benefit of the doubt on that, I will not impose the costs, but I came close to doing it. So how much time do you need to get yourselves

14 organized? 0 MR. McLISH: Bear with me one moment, Your Honor? Your Honor, in the interests of efficiency, I think if we could have an hour, maybe two hours to cull down our case to efficiently address what, you know, the current posture of the case? We didn't know what was going to be left after this morning's proceeding, so if we could have a recess of maybe two hours and come back and get started? THE COURT: All right, I'll give you until :00. It's an hour and a half, all right? So we can get some of this started before the lunch break. Now, as I recall, Mr. Deria is the plaintiff who traveled across country to be here? Isn't he the person with the large family, or is it one of the other plaintiffs? MR. McLISH: All of the plaintiffs have various travel issues, Your Honor. THE COURT: All right. MR. McLISH: And we need to take that into consideration in deciding who's going to testify when. We do have several people who need to testify and be on their way as soon as possible. THE COURT: That's fine. All right, so :00 noon I want to get this started. The -- if we don't finish the evidentiary hearing today, we will go into tomorrow, probably not starting until

15 0 eleven, and I would think we would conclude the evidence in two days if we don't finish it today, I mean, because again, a significant number of the issues are already resolved through the default, all right? MR. McLISH: Understood, Your Honor. THE COURT: Anything else? MR. McLISH: One other thing. Rule of Federal Rules of Civil Procedure does provide for a seven-day notice to the defaulting party before there'd be a hearing on the default judgment, and I just want to establish clearly on the record that that seven-day period is being waived. THE COURT: Mr. Drennan? MR. DRENNAN: Your Honor, I would waive the seven-day notice period in Rule, and I would state to the Court that I know that the Court has expressed when we were here on Tuesday some concerns about the timing of the bankruptcy filing on Sunday evening. Mr. Samantar has defaulted -- or elected to take his default as to liability and damages this morning. Your Honor, this is a most extraordinary case, and one factor that Mr. Samantar did not mention to the Court is that today, there is an extraordinarily historic conference presently underway in London convened at the behest of Prime Minister David Cameron. There are leaders of countries there to discuss the future of Somalia. Secretary of State Hillary Clinton is there. French Foreign Minister Alain Juppe

16 0 is there. Leaders of all of the countries that surround Somalia are there. Mr. Cameron said as he convened the hearing early this morning that the world will pay a high price if the problems of Somalia are not addressed. Secretary Clinton gave her remarks, and just one sentence or two here, she stated: "For decades, the world has focused on what we could prevent from happening in Somalia, be it conflict, famine, or other disasters. Now we are focused on what we can build. The opportunity is real." My client concurs with that sentiment, Your Honor, and although perhaps not articulated at the podium, that, too, is a factor in his decision. He believes that it would be destructive to the very, very fragile peace process underway for a two-week trial on liability and damages, with daily press reports, with the plaintiffs' counsel promising the world to provide daily feeds on Twitter and Facebook. Counsel represented to the bankruptcy court yesterday -- or Tuesday rather, that tens of thousands of dollars have been expended to bring this case forward. Counsel represented among other things having rented office space across the court -- across from the court here, referring to that office space as a war room. Your Honor, one last point on this: Clausewitz said that war is politics by another means. Litigation should not

17 0 be an atavistic prolongation of clan conflict by other means. Mr. Samantar and his family have suffered greatly over the last seven years, and I know that the plaintiffs claim to have suffered. I won't speak to that. We've defaulted. But what I can speak to is the sentiment that Somalia needs better than this. Somalia does not need more clan conflict. Somalia needs peace and reconciliation, Your Honor. THE COURT: Well, Mr. Drennan, I think that argument, which you made in a somewhat different context two or three years ago, we gave the United States executive branch, the State Department over two years to put their -- make a position -- take a position in this case. They chose not to. As you know, more recently in the matter that's pending before the Fourth Circuit and it was before us as well on the issue of common law immunity, the United States government did not come in on your side. I mean, the government -- the executive branch could have stopped this litigation if they felt that it was going to have the kind of negative impact that you discuss on the delicate efforts to heal the problems in Somalia. That's an area of expertise beyond this Court 's area, but I think it's fair to say so the record is clear that whatever dire impact you feel this case might have on that process is not shared by our State Department or any other executive branch officials, and that's reflected in the position that's been taken in this

18 case. So we're going to go ahead and treat this just like any other, because that's what it is, this is a civil case in which the plaintiffs are seeking compensatory and punitive damages, and it will be treated like any other case in that posture. So we'll recess until noon, at which time I expect the plaintiffs to be ready to go forward. Thank you. MR. McLISH: Thank you, Your Honor. (Which were all the proceedings had at this time.) CERTIFICATE OF THE REPORTER I certify that the foregoing is a correct transcript of the record of proceedings in the above-entitled matter. /s/ Anneliese J. Thomson 0